How a huge gamble by the lawyers defending ‘Lady Chatterley’s Lover’ changed obscenity law forever

Jeremy Hutchinson, who has died at 102, was one of England’s finest criminal barristers. He was counsel of choice for some of the most high-profile cases of his era. He defended the likes of Christine Keeler and Great Train robber Charles Wilson, and also obscenity cases against novels like Fanny Hill and Lady Chatterley’s Lover.

Later known as Lord Hutchinson of Lullington, his role defending Penguin Books after it published the unexpurgated version of the DH Lawrence classic is particularly memorable. It remains the landmark case in British obscenity law.

But look at the details and something extraordinary emerges: Penguin’s decision to publish 200,000 copies on the advice of Hutchinson and joint lead counsel Gerald Gardiner was a massive gamble. It set up a case that were it not for the incompetence of the prosecution could easily have gone the other way.

Obscenity and England

Lady Chatterley’s Lover had only ever been legally published in abridged versions in the UK, starting in 1932. Though by 1960 the unexpurgated edition was sold in Europe and America and could be obtained under the counter in London if you knew where to go, Penguin co-founder Allen Lane wanted to publish a cheap paperback of the full thing.

The idea was to put it out at 3 shillings and 6 pence, the same price as ten cigarettes, to make it affordable for the “young and the hoi polloi”. The excuse was the 30th anniversary of Lawrence’s death from tuberculosis at the age of 45.

When Penguin consulted Hutchinson and Gardiner, the lawyers retreated to reflect. A trial under the new Obscene Publications Act seemed inevitable. The act’s first paragraph stated that material will be deemed obscene if it contains elements that tend as a whole “to deprave and corrupt persons who are likely…to read, see or hear” it.

The act included a new defence in cases where the offending segments were “for the public good on the ground that [they are] in the interests of science, literature, art or learning”. In consultation with several literary experts, Hutchinson and Gardiner felt most of the racy scenes and bad language – including (30) “fucks” and (14) “cunts” – could fall under this defence. Lawrence, after all, was one of the most highly regarded writers of his era.

Hutchinson was concerned about page 258, however, where anal sex crops up – albeit obliquely. It has Oliver Mellors, the lover in the book’s title, trying to divorce his wife Bertha Coutts and being accused by her “of all unspeakable things”. Clifford Chatterley writes a letter to his own wife saying that Coutts has aired details about her marriage to Mellors which are “usually buried down in the deepest grave of matrimonial silence”.

But, he comments:

“Humanity has always had a strange avidity for unusual sexual postures, and if a man likes to use his wife, as Benvenuto Cellini says, ‘in the Italian way’, well that is a matter of taste.”

Lady Chatterley has pause for thought:

“Connie remembered the last night she had spent with [Mellors], and shivered. He had known all that sensuality, even with a Bertha Coutts! It was really rather disgusting. It would be well to be rid of him, clear of him altogether.”

Her friend Duncan Forbes then makes light of it:

“If he’s made love to his wife all ends on, hasn’t he a right to? She ought to be proud of it.”

While homosexual anal sex between consenting men was legalised 50 years ago in the UK, the heterosexual equivalent became legal only at the millennium in England and Wales and was highly illegal in 1960. (The 2001 film Bridget Jones’ Diary celebrated legalisation with a pretty explicit scene between Renée Zellweger and Hugh Grant.)

Illegal acts could still potentially use the public good defence, but Hutchinson feared it made the case much harder to win. Gardiner and the experts at the meeting dismissed his fears. In these more innocent times, they were betting that the prosecution wouldn’t grasp the point and omit it from their case. Hutchinson agreed to go ahead and advised Penguin accordingly.

Your witness

The defence called 35 professors of literature, authors, journalists, editors, critics, publishers and child education experts, and four Anglican churchmen. Each declared the book had sufficient literary merit to deserve publication for the public good. (Those less convinced of Lawrence’s genius begged off – Enid Blyton declared she had never read the book and “my husband said no at once”.)

Lead prosecutor Mervyn Griffith-Jones cross-examined only 14 of the 35. He lost most of those rounds, and sometimes his temper in the process. It was only in his closing speech he said to the jury:

“Would you look at page 258. It is a passage which I have not – and I do not think anybody has – referred to during the course of cross-examination, or indeed at any time during this trial. It…describes what is called the ‘night of sensual passion’.”

He read out the whole passage remarking: “Not very easy, sometimes, not very easy, you know, to know what in fact he is driving at in that passage.”

It’s not clear how many jurors understood the passage; some were said to be visibly shocked. Certainly Griffith-Jones had missed the significance entirely, having referenced it only to underline the book’s general depravity. Mr Justice Byrne summed up with no reference to anal sex either. The issues were, he said, promiscuity and adultery described in words that were “normally obscene”.

The jury returned in three hours and found Penguin not guilty. Neither the clergy nor any of the other experts had been examined on anal sex and it is not clear whether they realised they were implicitly defending it or not. A watershed in British obscenity law had been achieved without any discussion about the illegal sex acts central to the novel.

In the wake of this case, publishing in Britain became considerably more liberal. Had Hutchinson not agreed to advise Penguin to take that extraordinary gamble, things could have panned out very differently.

Sue Rabbitt Roff, part time tutor in Medical Education, University of Dundee.

This article first appeared on The Conversation.